Wednesday, November 12, 2008

Will Changes in Daniels' Second Term Include the Public Access Counselor's Office?

One of the changes Governor Daniels' needs to make in his second term is to replace Public Access Counselor Heather Willis Neal.

There is nothing I believe in more than open records and open meetings. When government is permitted to operate in secrecy it is inevitable that fraud and corruption seep in. While our open records law in particular needs to be stronger, the Public Access Counselor's Office, which interprets that law and issues advisory opinions, will only be as good as the person heading it.

There is a very well understood approach to the government's handling of consumer complaints. You get the complaint and then forward it to the party for a response. Then once the response is received, it is forwarded to the original complainant for a rebuttal. That practice is standard just about everywhere and is the same approach employed by judicial courts.

Public Access Counselor Heather Willis Neal, however, does not take that approach. When she receives a consumer complaint about open records, she forwards it to the agency for a response. Then after receiving the response from the agency, she immediately writes her opinion ...without bothering to send the agency's response to the original complainant for rebuttal.

What happens if the agency's response contains factual errors? It doesn't matter to Ms. Neal. All "facts" suggested by the agency are assumed as true when she writes her opinion.

Earlier this year my law firm requested documents from the Indiana Department of Insurance pursuant to the Open Records Law. Months passed and the documents were not produced, many of which could have been produced in a matter of minutes. We finally filed a complaint with the Public Access Counselor's Office. Ms. Neal's office forwarded it to IDOI for a response. Next thing I know, we are receiving a decision from the Public Access Counselor's Office completely based on IDOI's answer to our complaint that we had never seen. When we finally obtained IDOI's answer from Ms. Neal's office (which response should have been served on us from the beginning by IDOI), we found that it was riddled with factual inaccuracies which Ms. Neal's office had simply assumed where true when she wrote the PAC's published opinion in favor of IDOI.

When we asked Ms. Neal's office about her failure to check out the accuracy of IDOI's facts by asking for a rebuttal, her response was that her office was simply "too busy" to send agency's responses to the complainants to get a rebuttal. So instead, she assumes that all the "facts" cited by agency are true. She did not care that her opinion was expressly based on the incorrect facts. She stubbornly refused to change her opinion even when we pointed out the repeated factual inaccuracies contained in that opinion.

Later, we asked for a contract the Marion County Sheriff had with a private correctional company. An Indianapolis Star reporter who asked for the same document received it via email within an hour or so. When weeks passed and the Sheriff's office still had not produced the document, we filed a complaint with the PAC. Again, Ms. Neal's office issued a published opinion based on an answer from the Sheriff's office we did not receive. Her opinion was that as long as the Sheriff produced the document within a month from the time of the original request, he was not in violation of Indiana's Open Record's Law. Of course, that's not the time frame for a response set out in the open records law which is 24 hours with an in person request and 7 days for one made in writing.

What a great message to send to our government agencies. You can ignore open records requests for as long as you want, and the Public Access Counselor will issue an opinion excusing the conduct. (In fact, with regard to IDOI, that agency had not even acknowledged two open records requests until we filed a complaint with the Public Access Counselor's Office.) While the legislature wrestles with giving the PAC 0ffice more authority, such an effort is meaningless without a stronger leader who is serious about the need for agencies to comply with the open records law.

Hopefully in his second term Governor Daniels will replace Heather Willis Neal with someone who believes in being a strong advocate for open government. Open government is good government.


Diana Vice said...

This is true. It happened to me, and when I provided evidence that a school corporation provided faulty information which led to a flawed opinion, I was told that the evidence I offered would be placed in the file. No other corrective action was taken. The school corporation was given a free pass for providing false information to the government agency. I hope the access counselor takes your advice, because once again you make sound arguments.

Paul K. Ogden said...


The exact same thing happened with me. Once she issued the opinion based on flawed facts, I showed her how those facts she relied on were false. She flat-out refused to correct her opinion.

If she is not going to do her job, which she has clearly indicated that she is not she needs to resign and let somebody else do it.

varangianguard said...

I had the opportunity to learn something (second-hand, thankfully) of this office's modus operandi during last year's Perry Township Superintendent-School Board dust up.

I just wonder if this behavior is exactly what was desired in this office? She's hired by the same people that she is tasked with monitoring, more or less. It would seem the epitome of a conflict of interest, at the very least.

The failure is that she doesn't seem to be proactive in lessening her caseload. The office is so very busy, because there is so much stonewalling going on around the state. One might think that identifying that and working hard for a legislative remedy, might be desirable, if the position was really meant to encourage public access.

On the face of it, it looks more like a toothless patronage job, really meant to discourage public access, filled by a Counselor who is way over her pay grade.

But hey, that's just how it looks to ignorant old me. What do I know?

Paul K. Ogden said...


That's an excellent, excellent point. If she actually forcefully interpreted the open records law, there wouldn't be so much stonewalling by agencies and thus she wouldn't have a backlog. She's sent the clear message to agencies that she'll excuse non-compliance with the open records law. Now many agencies won't even acknowledge people's open records request until that person files a complaint with the public access counselor and of course she is going to excuse the delay anyway.

Excellent point, Varangianguard.

M Theory said...

Heather and her office did it to me too Paul!

I hope your blog gets lots of hits from the State House and that the Governor is listening.

The way she runs that office is shameful and puts the interests of government insiders ahead of the people they are supposed to serve.

varangianguard said...

Unfortunately, I think this is all talking to the wind.

The Governor just got reelected by a goodly margin, and no doubt will assume that voters think stuff like public access is working fine, just the way it is.

I would be extremely surprised to find that the Governor stepped up on this on replaced Ms. Neal with someone who would take this seriously (like, Paul, for example).

Paul K. Ogden said...

I have always said that the one area where the Gov is weakest is a lack of strong oversight over his agencies. It's almost like there is a philosophical "hands off" approach to management. I don't understand that. Why wait until there is an embarassing front page story in the paper before you take action?

varangianguard said...

I dunno.

Maybe it's either the old "if it ain't broke, don't fix it" or that the Governor is more of a gambler than we think he is.

Of course, the definition of "broke" seems to be different depending upon where one stands.

The point about being a gambler is that the Governor is "betting" that the complaints don't spill over the threshold of public outcry into tangible voter indignation.

In my opinion, the Governor is only going to be "proactive" in areas that directly affects his program for change in Indiana, his ability to govern, affects the "needs" of the existing government establishment, and where public disapproval might cause undue negative attention to himself (in that order).

You, Diana, Melyssa and some people in Perry Township are not amused by Ms. Neal's behavior, but you guys just don't register on anybody's "Governator Scale". The best you could hope for is to initiate some action in the Indiana court system with some sympathetic jurist(s). In my estimation, only that would spur the Governor into attending to this issue.

Paul K. Ogden said...

You can always go to court, Varan. The problem is it is exepensive and takes a lot of time. The problem is though on most cases, if you are going to ask for fees, you have to get an opinion from the PAC. And when she issues an opinion, it's very persuasive to a judge who isn't used to dealing with the open records law. The PAC ends up hurting your case. You can go straight to court, but then you are usually waiving any attempt to get attorney's fees.

varangianguard said...

Maybe it's tilting at windmills, or not legal to sue the State, but I meant suing the PAC itself.

Paul K. Ogden said...

The PAC always responds that the opinoin they issue is only "advisory." That overlooks: 1) the effect a bad opinion from the PAC has on subsequent litigation; and 2) that the whole purpose of the PAC is to try to settle matters without going to court.